By Lisa Keen
President Obama announced today that he is nominating Merrick Garland, a 63-year-old white male chief judge of the federal appeals court in Washington DC, to replace the late Justice Antonin Scalia on the U.S. Supreme Court.
In announcing Garland’s nomination, President Obama said he is a “thoughtful, fair-minded judge who follows the law.”
“People respect Merrick’s deep and abiding passion for protecting our most basic constitutional rights,” said Obama. Garland served on the DC Circuit U.S. Court of Appeals alongside now U.S. Supreme Court Chief Justice John Roberts Jr. On that federal appeals court, he upheld a gay Navy man’s discharge even though two discharge boards said there was insufficient evidence to merit discharge. He also joined a decision that upheld a Federal Communications Commission action against the operator of a low-power radio broadcaster serving the gay community. Additionally, he joined then DC Circuit Judge John Roberts Jr. in a decision rejecting police liability for misconduct by officers who sprayed a chemical deterrent on members of a pro-gay protest group during President George W. Bush’s first inaugural parade.
Given the U.S. Senate Judiciary Committee’s announced intention to ignore Obama’s nominee, the choice of Merrick Garland to replace the high court’s most conservative justice set off immediate conjecture. Obama said Garland’s name came up repeatedly during previous Supreme Court nominee searches as one proffered by both Democrats and Republicans.
But Obama has previously nominated judges that break new ground — the first Latina to the Supreme Court, the first openly gay man to a federal appeals court, the first African-American lesbian to a federal district court. Why would he choose a white, male moderate as his last nominee to the nation’s highest court?
Many court observers predicted Obama would choose Sri Srinivasan, a member of the federal appeals court in DC, to become the first Asian member of the Supreme Court. Srinivasan, 49, has the advantage of having been confirmed on a 97 to 0 vote in the Senate in 2013, after an easy confirmation hearing. (Srinivasan had argued for the Justice Department for overturning the Defense of Marriage Act, but his argument was on a strictly procedural issue.) Srinivasan had clerked for U.S. Supreme Court Justice Sandra Day O’Connor and conservative 4th Circuit Judge J. Harvie Wilkinson. And he had the support of such prominent conservatives as former Republican Solicitors General Paul Clement and Kenneth Starr.
Garland is characterized by many court observers as a moderate, but he clerked for one of the Supreme Court’s most liberal justices: William Brennan. Garland was nominated to the federal district court of DC by President Clinton.
Scotusblog.com noted that, during his district court confirmation hearing in 1995, Garland assured senators that he did not believe judges should “solve societal problems” but simply “apply law to the facts of the case.” Garland was born in Chicago in 1952. He graduated magna cum laude from Harvard Law, and clerked for Judge Henry Friendly, worked at a law practice, and then became an assistant to President Jimmy Carter’s attorney general Benjamin Civiletti. He helped prosecute the Oklahoma City bomber Timothy McVeigh. President Obama said Garland would begin meeting with senators Wednesday and he pleaded with Senate Republicans to give Garland an up or down vote. Failure to do so, said Obama, will wreak havoc with the Supreme Court and democracy.
Senate Republicans continue to say they will not meet with Garland and will not give him a hearing. They argue that, because a presidential campaign is underway, the decision for who should replace Scalia should be delayed until a new president is chosen.
Garland immediately choked up at the Rose Garden ceremony, saying the nomination was the “greatest honor I have ever received.” He noted that his ancestors fled to the U.S. to avoid anti-Semitism. People must be confident, said Garland, that decisions are “based on the law and only the law” and that judges must “put aside personal views or preferences and follow the law, not make it.”
By Lisa Keen